Court says NASA background checks can continue

WASHINGTON – The Supreme Court on Wednesday refused to stop federal investigations into the private lives of people who want to work at government installations — even those who don't have security clearances and don't work on secret projects.

The high court turned away challenges to background checks of low-risk employees at NASA's Jet Propulsion Laboratory in California, despite claims from those federal contractors that the investigations were unconstitutional because they invaded their privacy.

"We reject the argument that the government, when it requests job-related personal information in an employment background check, has a constitutional burden to demonstrate that its questions are 'necessary' or the least restrictive means of furthering its interests," Justice Samuel Alito said.

Employees said the agency was invading their privacy by requiring investigations that looked into their medical records and asked friends about their finances and sex lives. If the workers didn't agree to the checks and fill out questionnaires on Standard Form 85 (SF-85) and Form 42, they were to be fired.

The Jet Propulsion Laboratory is NASA's premier robotics lab, famous for sending unmanned spacecraft to Mars and the outer solar system. Unlike other NASA research centers, it's run by the California Institute of Technology. Lab scientists, engineers and staff are Caltech employees, but the campus and its buildings are owned by NASA.

A federal judge originally refused to stop NASA's background checks while the lawsuit made its way through the courts. He was overturned by the 9th U.S. Circuit Court of Appeals in San Francisco.

Alito wrote, in a unanimous judgment for the Supreme Court, that the justices were not ruling on whether there was a constitutional right to "informational privacy."

"We hold, however, that whatever the scope of this interest, it does not prevent the government from asking reasonable questions of the sort included on SF-85 and Form 42 in an employment background investigation that is subject to the Privacy Act's safeguards against public disclosure," Alito said.

None of the workers who sued work on classified projects or have security clearances, though several are involved in high-profile missions, including the twin Mars rovers and the Cassini spacecraft studying Saturn and its moons.

The government has been doing background checks on all civil service employees since 1953.

In 2007, NASA extended background checks for federal employees to its contract workers in response to a presidential directive that ordered government agencies to tighten security at facilities and computer systems by issuing new identification badges for millions of civil servants and contractors. The directive came in response to the terrorist attacks on Sept. 11, 2001.

"Form 42 alone is sent out by the government over 1.8 million times annually," Alito said.

In concurring judgments, Justices Antonin Scalia and Clarence Thomas said they had simpler reasons for deciding against the NASA contract employees. "A federal constitutional right to 'informational privacy' does not exist," Scalia said.

Alito said this case was not appropriate for answering that question. "We therefore decide the case before us and leave broader issues for another day," he said.

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